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Concurrent jurisdiction is not working

In Indian Country Today


Concurrent jurisdiction is not working


Reservation communities share concurrent criminal jurisdiction with either the federal government or, in Public Law 280 jurisdictions, county-state governments. The exact mechanisms by which tribal, state or federal authorities share policing and justice is not well-defined. The expression of concurrent jurisdiction seems to imply a sharing of authority over criminal policing and courts among tribes, county-state, and federal government. For the most part, however, the sharing of authority or jurisdiction by tribal, county-state or federal authorities is more the exception than the rule.

In federal jurisdictions, federal courts and the Federal Bureau of Investigation manage major crimes. It’s well-known, however, at least from the tribal perspective, that tribal communities have little faith in the federal court system or the FBI. The federal courts are seen as far away and distant. U.S. attorneys and federal judges are not well-trained to understand tribal law, federal Indian law, and generally have little understanding of tribal cultures or histories.

Tribal communities bear the 
price of little voice, participation, 
or co-governance with the 
administration of criminal justice.

U.S. attorneys often decline cases if they feel they lack evidence. The federal courts, in general, do not take up the types of criminal cases that arise in Indian country, because outside of Indian country, most major crimes are handled by state authorities. FBI agents have little cultural understanding of tribal communities, do not get much cooperation since they are not familiar with reservation communities, and have limited assignments to Indian country, which prevents them from gaining significant on-the-job experience and training. For both FBI agents and U.S. attorneys, criminal cases from Indian country often are considered low priority. Even when U.S. attorneys decline a case, they are often not quickly, or sometimes never, sent back to tribal courts that hold concurrent jurisdiction for crimes on reservations.

The state and county courts and police in Public Law 280 jurisdictions are not seen by tribal members as a solution to management of reservation crime issues. County-state police are seen by tribal members as culturally unaware and lacking in direct experience with tribal communities. Tribal community members are often reluctant to trust and cooperate with county-state police. County-state courts, as well as federal courts, are seen by tribal members as not fair or culturally sensitive to tribal defendants or tribal crime victims.

Most tribal communities prefer to manage their own courts, police and jails, if they had sufficient funds, cooperation from non-tribal agencies, and institutions of fair management and justice within tribal communities. Currently, many tribal communities are doubtful about whether tribal courts and police have sufficient funding, can deliver effective police services, and can provide fair public safety that is immune from tribal political influence.

The exact mechanisms by which tribal, state or federal authorities share policing and justice is not well-defined.

Tribal, county-state, and federal courts and police tend not to communicate well, and do not share management, resources, or co-governance of criminal jurisdiction in Indian country. The concurrent jurisdiction of tribal courts and governments tends to be ignored by both state and federal authorities. Federal courts and FBI assume they have control over major crimes, and county-state courts and police in Public Law 280 jurisdictions do the same. Federal and state authorities interpret concurrent jurisdiction so tribal, county-state, and federal jurisdictions are isolated with little cooperation.

The major problem with the present practices of concurrent jurisdiction is that non-cooperating jurisdictions do not work well. Tribal communities bear the price of little voice, participation, or co-governance with the administration of criminal justice. Indian communities are dissatisfied with the management of non-tribal courts and police, and do not receive fair justice, cultural sensitivity, or adequate public safety.

Federal and county-state courts and police need to form cooperative co-governance relations with tribal governments and share management over justice and policing in Indian country. Federal and county-state governments should support greater resource allocations to tribal police and courts, especially for the cases considered low priority. Only when tribal communities share in the management and organization of justice and policing will public safety and fair justice be re-established in Indian country.

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